Oregon High Court Rules Viewing Child Pornography Online Is Not Possessing It

January 10, 2011 by David S. Seltzer

A child pornography case out of Oregon caught my eye as a child pornography attorney, because it was a rare victory for someone accused of a child porn crime. The Oregonian reported Jan. 6 that the Oregon Supreme Court has ruled that computer users commit no crime by merely looking at images of child pornography, unless they download, pay for or print out the images. The 5-2 ruling overturns the conviction of Barry Lowell Barger on eight counts of encouraging child sexual abuse (an Oregon state crime). He will remain in prison on a separate 25-year sentence for sexually abusing two children under age 12. However, the ruling has wide implications for child pornography defendants in Oregon, and may also affect defendants in other states with statutes worded similarly to Oregon’s.

The case turns on Oregon’s state law against “encouraging child sexual abuse,” which forbids knowingly possessing or controlling child pornography, or knowingly paying to obtain or view such material. In Barger’s case, it’s not disputed that he didn’t pay for the pornography. Police officers investigating the child molestation case visited Barger’s home, where his wife told them Barger had “weird” material on his computer. They looked into his Web browsing history and found that he’d visited some websites with sexual pictures of girls in their early teens and younger. Some such pictures may have been stored automatically by the computer. That was the basis for the charges of encouraging child sexual abuse. The trial court in Barger’s case decided that he had “possession” because he could have printed, saved or otherwise controlled the images, and an appeals court agreed. The high court, however, said Web browsing was more like “walking into a museum to look at pictures -- the pictures are where the person expected them to be, and he can look at them, but that does not in any sense give him possession of them.”

This ruling applies only to Oregon, of course. It also won't affect Florida, where courts have ruled that merely viewing child pornography -- as established by the temporary files stored in the user's "cache," may be enough for a possession charge. An experienced child pornography possession lawyer may be able to argue that there's no possession if the user was genuinely unfamiliar with computers -- but any attempt to clear the cache or otherwise delete temporary files can be taken as evidence of knowing possession. Police officers and prosecutors who understand the difference between intentionally saving files and the temporary Internet file folders created by a Web browser may try to charge an individual with possession without actually proving knowledge of the user's actual possession. For example, prosecutors might argue that the user exerted dominion and/or control over the images/knew of their existence on the computer, albeit temporarily. That's why it's important to hire an experienced child pornography possession attorney in such a case, so that you can ensure your rights are not violated.

If you’re accused of a child pornography crime, you should call Seltzer Law, P.A., as soon as possible. Our lead attorney, David Seltzer, is an experienced former cyber crime prosecutor and understands technology as well as the laws Florida prosecutors use. To set up a free consultation on your case, you can reach us toll-free at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.